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Myers v. AT&T Corp.

January 28, 2009

LOIS MYERS, PLAINTIFF-APPELLANT,
v.
AT&T CORP., DEFENDANT-RESPONDENT.



On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-5100-01.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued September 29, 2008

Before Judges Carchman, R. B. Coleman and Simonelli.

Plaintiff Lois Myers, an employee of defendant AT&T Corp., became ill with cancer. After temporarily leaving her employ on disability and after her cancer was in remission, she then returned to her previous position. Two years later, plaintiff was terminated as part of an extensive reduction in force of thousands of employees.

Asserting that her termination was motivated by her disability, plaintiff filed a complaint alleging discrimination.*fn1

Following a jury trial, the jury disagreed and found in favor of defendant.

Plaintiff moved for a new trial claiming that the jury verdict was against the weight of the evidence, that the jury charge did not properly explain the law regarding mixed motives for terminations, that the trial judge did not adequately answer the jury's questions regarding the law, and that the judge did not advise the jury regarding a negative inference that could be drawn against defendant. Plaintiff's motion was denied, and she now appeals. On appeal, plaintiff raises the same issues that she raised on her motion for a new trial. We affirm.

These are the relevant facts presented to the jury.*fn2

Plaintiff, employed by defendant since 1983 and a regular recipient of job performance awards and commendations, was diagnosed with ovarian cancer. She went on paid disability leave from February 1998 until November 1998, and when her cancer was in full remission, she resumed her old position. When she returned to work, she experienced no discrimination and stated that she felt healthy, as if the cancer had "never happened."

In the summer of 1999, due to a reorganization in the company, plaintiff became a B-band manager of the High Value Clients Organization (HVCO), which was newly started in the Morristown office. Plaintiff's supervisor was Dana Joachim, a C-band manager who was supervised by Gary Hilbert, the E-band manager in charge of the HVCO. In addition to plaintiff, Joachim also supervised another B-band manager, Greg Kirby. Plaintiff's job encompassed creative marketing, and Kirby was in charge of tracking profitability. The HVCO also employed Marisa Cozzolino, a B-band manager supervised by D-band manager Steve Pardonner. Plaintiff noted that throughout 1999 and 2000 she felt healthy, did not consider herself affected by her illness, and worked as hard after the cancer as she had before.

Defendant had a procedure for yearly performance appraisals whereby the employee would submit a self-appraisal that included a narrative as well as a rating in two areas. In the area of "Attainment of Business Results," the employee could choose (from the highest to the lowest) "Above target," "On target," "Below target" or "Significantly below target." In the area entitled "Demonstration of Leadership Concepts," the employee could choose (again from highest to lowest) "Role Model," "Accomplished," "Skilled" or "Needs development."

After the employees completed their performance evaluations, the supervisors would meet for a "round table discussion" of all the employees within a particular band. At this meeting, the supervisors could opt to change a rating that an employee had chosen. Subsequently, the supervisors would submit their recommendations for approval to the manager in charge of the organization. Tim Ward, director of human resources, observed, and plaintiff conceded, that it was known that performance ratings chosen by an employee could be changed by supervisors.

In 1999 and 2000 defendant engaged in "forced distributions" of ratings and rankings, meaning that only 25% of employees could be rated in the highest categories. The managers used the round table meetings to comply with the directive of "forced distribution," and to insure that only a limited number of employees within a band attained the highest ratings.

Plaintiff submitted her 1999 appraisal to Joachim giving herself the highest possible ratings of "Above target" and "Role Model" in the two categories. Kirby gave himself identical ratings.

Toward the end of 1999, Hilbert, Joachim and Pardonner met at the "round table meeting" to discuss the three B-band employees: plaintiff, Kirby and Cozzolino.*fn3 In order to comply with the forced distributions, only one of the three could receive the highest possible ratings. They decided to give plaintiff and Cozzolino the second-to-highest ratings and Kirby the highest ratings. Joachim changed plaintiff's performance review form by using whiteout, and Ward testified that this was an acceptable practice. Apparently, Joachim did not sign the performance review, but Hilbert did on February 29, 2000. Hilbert stated that he had very limited interactions with plaintiff and relied on Joachim entirely for an assessment of plaintiff's capabilities. However, in her previous performance review of 1997, plaintiff also did not attain the highest ratings.

At the end of 1999, when the round table meeting occurred, there were rumors that a forced management program*fn4 involving layoffs was imminent. Hilbert and Pardonner stated that rumors of layoffs were constant at the company during that time. In January 2000, Hilbert received word that there would indeed be cutbacks in his department. Out of 22,000 employees in plaintiff's unit at the beginning of 2000, only 17,000 remained by the end of the year. In fact the entire HVCO, which was only one year old, was disbanded; and Hilbert, Joachim, and Kirby started looking for new jobs within the company.

Hilbert tried to help his employees find new positions in the company. He contacted Kim Partoll, the manager of a different unit, with the goal that some of his employees would be absorbed into her organization. At first Partoll indicated that she might have positions for ...


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